About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2023
>>
[2023] ZAECMHC 9
|
|
Mbana v Walter Sisulu University and Others (846/2023) [2023] ZAECMHC 9 (7 March 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
RIGHT TO FURTHER EDUCATION
CONSTITUTION
– Education – Further education – Admission
letter from university for Bachelor of Laws –
Applicant
given three days to accept offer – Applicant unable to
register online as intake was full – Breach
of contract –
Violation of applicant’s right to further education –
University ordered to allow applicant
to register –
Constitution, s 29(1)(b).
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MTHATHA]
CASE NO. 846/2023
In
the matter between:
MILELA
HLUMELO
MBANA
Applicant
and
WALTER
SISULU
UNIVERSITY
1
st
Respondent
WALTER
SISULU UNIVERSITY:
REGISTRAR
DR L.
NTONZIMA
2
nd
Respondent
MINISTER
OF HIGHER EDUCATION,
SCIENCE
AND
TECHNOLOGY
3
rd
Respondent
JUDGMENT
JOLWANA J:
[1] The applicant
approached this Court by way of urgency, in the main, seeking a
declarator that the first and second respondents’
conduct of
allocating his space in the Bachelor of Laws degree for the 2023
academic year to the next deserving student in circumstances
where he
had timeously fulfilled and met all the conditions for his
registration is a violation of his right to further education.
He therefore seeks the intervention of this Court to vindicate this
right. He further seeks a declaratory order that his
premature
exclusion from the Bachelor of Laws degree progamme for the 2023
academic year is in breach of contract. The issue
of urgency
does not arise as it was conceded, correctly so, by the first and
second respondents. The third respondent did
not participate in
these proceedings. Only the first and second respondents oppose
the relief sought. For convenience
and brevity, I shall
henceforth refer to the first and second respondents as the
respondents. I will, at times, refer to
the second respondent
as the registrar and the first respondent as the University.
[2] The applicant was 17
years old on 11 July 2022 doing grade 12 at St Johns College in
Mthatha. On that day he completed
and submitted an online
application to Walter Sisuslu University (WSU) for his admission to
study towards a Bachelor of Laws degree.
After successfully
completing his grade 12 with an endorsement for a Bachelor’s
degree, he received acceptance offers from
various Universities
including WSU as he had also applied to other Universities. He
rejected the offers from the other Universities
and accepted the one
from WSU.
[3] The admission letter
addressed by WSU to the applicant is dated 7 February 2023. In
part, it reads:
“
It
gives us pleasure to inform you that you have been
admitted
to the undermentioned qualification at
Walter Sisuslu University (WSU).
Bachelor of Laws 1
ST
– Mthatha Campus
Admission Status:
ADMITTED
Faculty: Humanities,
Social Sciences and Law
Please note that this
offer is subject to the following conditions:
1.
Acceptance or rejection of firm offer of
admission
.
As only a limited number
of admissions can be made for this program, it is imperative that the
University receives your response
of accepting or rejecting the firm
offer within three (03) days of receiving this letter from the date
of issue. Failure
to do so will result in your space being
given to the next deserving student.
Please
note that registration is done
online
subject to availability of space and first come first served.
Registration guidelines and procedures are available on the
University website
w[...]
.
First time entering/new
students must register from Monday, 23 January 2023 until Friday, 27
January 2023. Failure to do so
will result in your space being
given to the next deserving student.”
[4]
He submits that on the same day that he received the offer, he
accepted it by phoning the University on 0[...]. During
that
call he requested to talk with the registrar. His call was
transferred to the office of the registrar. This is
when he
indicated his acceptance of the offer of admission to the
University. He then took all the necessary steps to comply
with
the salient terms and conditions of the offer. In this regard
he made a payment of the registration fee in the sum of
R4 600.00
into the bank account indicated in the admission letter. He
emailed his proof of payment to
m[...]
and
requested registration clearance.
[5] The proof of payment
attached to the founding affidavit indicates that payment was made on
the 7 February 2023 at 13:34 and
it was emailed to the above email
address at 13:58. With regard to the minimum initial payment which
the applicant paid, the admission
letter reads:
“
2.
Registration Fees.
Students
without
financial
assistance or funding, will be required to pay the minimum initial
payment (MIP) as approved by Council to register.
The
University’s banking details are as follows:
account
at F[...], account name: WSU student fees account; account type:
Current, account number: 5[...], branch code: 2[...]
.
Please deposit the MIP two days before your scheduled registration
date to allow for clearance. Please use your student
number
which appears at the top of this page as your reference on the
deposit slip. Students who are funded by NFSAS shall
be cleared
to register after the University has verified funding directly with
NFSAS provided they are enrolled for a funded qualification.
Students who have bursary funding should request their sponsors to
send the letter confirming funding directly to
b[...]
and
shall be cleared to register after the University has completed the
necessary verifications.”
[6] The email referred to
by the applicant has as its subject a request for registration
clearance and attaches the proof of payment.
The applicant says
that he was then cleared on the same day, and was able to access the
online registration portal. He then
attempted to register on
the same day the 7 February 2023 after being cleared and given access
to the registration portal.
His numerous attempts to submit his
registration all failed as the registration portal indicated that the
intake for the Bachelor
of Laws degree programme was full. He
contends that having been offered space as one of the University’s
students for
the 2023 academic year and having duly and promptly
accepted the offer and complied with all the terms and conditions of
acceptance
contained therein, it was unconstitutional and in breach
of contract for him to be prevented from registering.
[7] The applicant
contends that the respondents have a constitutional duty to ensure
that his right to further education is not
undermined or violated.
They have failed to ensure the realization and protection of his
constitutional right of access to
further education. He
advances his case both on his constitutional right to further
education and on the contractual agreement
in terms of which he was
given 3 (three) days within which to indicate his acceptance or
rejection of the offer made to him by
the University. In a
nutshell, his contention is that the respondents had no right in law
to offer his space to another deserving
student except if he had
failed to meet the conditions on which he was assured of registration
if he promptly accepted the firm
offer within the specified 3 (three)
day period.
[8]
The second respondent (the registrar) has deposed to an answering
affidavit on behalf of both respondents. In the first
instance,
the registrar contends that in terms of section 37 (4) of the Higher
Education Act
[1]
the University
Council determines the University’s admission policy including
entrance requirements in respect of any particular
higher education
programme as well as the number of students who may be admitted for
any particular higher education programme
and the manner of their
selection.
[9] He further submits
that in terms of the rules of the University published in its anual
prospectus, the University reserves the
right to admit or refuse
admission to specific qualification programmes taking into
consideration the University’s targets
and capacity to offer
the qualifications and programmes concerned. Therefore, only a
limited number of students may be considered
for admission.
Admission depends on the availability of space and the student’s
overall performance. In my view,
nothing turns on the
provisions of this Act or the admission policy of the University to
the extent that the University complies
with the admission policy and
a prospective student also complies with it.
[10] The registrar
submits that for the 2023 academic year, the University received
509 000 applications for admission to study
various first year
courses. The University had 7175 spaces available for admission
of first year students. In particular,
the law faculty may only
register 75 first year students for the 2023 academic year.
However, to increase the number of admissions,
a number of
initiatives were taken including increasing the number of admission
letters issued to prospective students for the
LLB course from 103 to
276. The 75 first year students the University was allowed to
admit was determined by the Department
of Higher Education and
Training which provides funding for the LLB programme.
The University is therefore not allowed
to over-subscribe for any
course and therefore may not register students above the determined
number regardless of the fact that
they may have been issued with
admission letters. Should the University over-subscribe it gets
penalised by the Department
of Higher Education and Training.
The University will not receive subsidies from the Department of
Higher Education and Training
for over-subscribed students in
circumstances in which the University will not be able to provide
funding in respect of the over-subscribed
students for food and
residence costs, tuition and the required textbooks.
[11] On the basis of,
inter alia, all of the above, the respondents contend that they have
not acted in violation of the applicant’s
right to further
education. They also have not acted in breach of contract in
barring the applicant from registering.
However, the
respondents admit that the applicant met the admission criteria for
admission as a first year student in the faculty
of law. They
further admit the admission letter issued to him and the terms and
conditions contained therein. Their
contention is that that
letter is being misconstrued to mean registered as against admitted
or an entitlement to registration for
a particular course of study.
[12] The registrar
submits that the admission letter merely confirmed that the applicant
met the admission requirements for the
Bachelor of Laws degree and
offered him an opportunity to register. In this regard reliance
is placed on the conditions contained
in the letter. These are,
first, that only a limited number of admissions can be made for the
LLB programme. For this
reason, only a limited number can be
allocated to register on the online registration platform. The
admission letter records
that it is imperative that the University
receives the applicant’s response of accepting or rejecting the
firm offer within
3 (three) days of receipt of the letter from the
date of issue because failure to do so would result in the space
allocated to
him being allocated to the next deserving student.
[13] Second, the
University contends that the letter further records that formal
registration is done online, subject to the availability
of space on
a first come first served basis and further that failure to do so
would result in the allocated space being given to
the next deserving
student. On these bases, the University submits that admission
to the degree of choice does not guarantee
registration because of
the limited number of spaces available. The University further
contends that the applicant was required
to register on the online
registration portal for the degree without delay. Any delay
would result in the course becoming
fully subscribed and the
registration portal would then not allow him to register once the
course becomes fully subscribed.
[14] It will be noted
from the University’s submissions that the University does not
explain what it expected an ordinary
reader or recipient of the
admission letter to understand where it says that he had 3 (three)
days within which he was required
to indicate his acceptance of the
space allocated and offered to him. It gets worse, in its
answering affidavit, the University
explains that the applicant was
required to indicate his acceptance by registering for the degree on
the online portal. The
deponent adds that “[t]his is
formal acceptance of the offer.” Nowhere in its affidavit does
the University explain
what first come first served means in relation
to the explicit indication in the admission letter that the applicant
had 3 (three)
days within which to accept the offer.
[15] The University makes
its case about the letter in its answering affidavit as follows:
“
35.5
The letter records that the offer was subject to the following
conditions:
35.5.1 It records that
only a limited number of admissions can be made for this programme.
What the letter actually refers
to is registration via the
applicant’s online registration platform limits the number of
students that can be admitted for
the degree for the reasons that I
have already stated. The letter records that it is imperative
that the University receives
the applicant’s response accepting
or rejecting the firm offer within 3 (three) days of receipt of the
letter from the date
of issue because failure to do so would result
in the allocated space being allocated to the next deserving student.
35.5.2 What the first
respondent requires by way of acceptance is that the applicant
registers for the degree on the online portal.
That is formal
acceptance.
35.5.3 The letter further
records that formal registration is done online, subject to
availability of space on a first come first
come first served basis
and further that failure to do so would result in the allocated space
being given to the next deserving
student. It is thus so that
admission to the degree of choice conveyed by the letter, does not
guarantee registration because
of the limited number of spaces
available.
35.5.4 The applicant does
not appear to appreciate that even though he had met the requirements
of the degree and being presented
with a letter of admission he was
required, without delay to register via the applicant’s online
registration portal for
the degree because a delay in doing so would
result in the course becoming fully subscribed. The online
platform would then,
once the course is fully subscribed, not allow
him to register.”
[16] On the respondents’
version it can be accepted that, first, there was a space allocated
to the applicant. Second,
the applicant had 3 (three) days from
the date of issue of the letter to indicate his acceptance or
rejection of his space.
Third, if he did not do so within 3
(three) days, that would result in the space allocated to him being
allocated to the next deserving
student. These are the three
main terms and conditions communicated to the applicant subject to
which registration would
be processed. Sub paragraph 2 of
paragraph 1 merely explains the registration procedures which in this
case is an online
registration process. It further explains
where registration guidelines and procedures are to be found which is
in the University’s
website. It goes on to explain that
the online registration is subject to availability of space and on a
first come first
served basis. The first part of paragraph 1 of
the letter does not indicate how the offer is to be accepted or even
rejected.
What it does convey is that an indication of
acceptance or rejection of the offer must be made within 3 (three)
days.
[17] The applicant’s
case in this regard is that after receiving the firm offer, he did
not walk to the University to accept
the offer or send an email
accepting the offer. What he did do was to call the University
on 0[...]. When the call
got through, his call was transferred
to the office of the registrar in which he indicated in that
telephone call his acceptance
of the offer. The registrar does
not say that such a call to that number could not have been made.
What he does say
is that they have no record of any telephone call
from the applicant accepting the offer. He further says that
that would
not have been the correct method of acceptance of the
offer. The correct method would have been registration on the
online
registration portal. It seems to me that on the
respondents’ version therefore, nothing turns on whether the
call was
or was not made.
[18] One of the
difficulties with the respondents’ submissions in this regard
is that it was not pointed out to the court
where the method of
accepting or rejecting the offer within 3 (three) days is to be found
in its regulatory instruments including
the prospectus. I do
not know how for instance one would go to the registration portal to
indicate a rejection of the firm
offer. The respondents do not
explain this in their answering affidavit beyond pointing to the
online registration as the
only method of accepting the offer.
The applicant, on the very day that he received the admission letter
with the conditions
already referred to above, paid the R4600.00
minimum initial payment at 13:34 according to the deposit slip.
At 13:58 he
emailed proof of payment to an official email address of
the respondents after which he was cleared for registration. The
respondents do not dispute that proof of payment was emailed to a
correct email address and also do not deny that he was thereafter
cleared for registration.
[18] The proof of payment
as well as proof of the email having been sent at 13:58 to the mail
address referred to by the applicant
are attached to his founding
affidavit as annexures MH3 and MH4. These documents are not
disputed by the respondents.
Besides, the respondents
themselves accept that payment was in fact made hence they tender a
refund of the amount paid in their
papers. The applicant
submits that he thereafter attempted to register for the LLB degree
programme on the same day, the
07 February 2023. He tried to
register a number of times and all his attempts were not successful.
The online registration
portal indicated to him that the intake for
the LLB programme was filled to maximum capacity. The
respondents admit this
averment and go on to say that this was the
case because the course was already fully subscribed.
[19] It is difficult to
understand the respondent’s case on how it got to be that the
course was fully subscribed in light
of the fact that on their own
showing the applicant had 3 (three) days within which to register.
It is not in dispute that
he attempted to do so on the very first day
he received the admission letter containing guidance on what was
expected of him.
It is not explained by the respondents how and
on what basis they allowed the course to become fully subscribed
after telling the
applicant that he had 3 (three) days to accept the
offer by registering. This brings me to the interpretation of
paragraph
1 of the respondents’ letter dated 07 February 2023.
The parties are poles apart on the interpretation of that paragraph.
[20]
In
Endumeni
[2]
the Supreme Court of Appeal explained the process of interpretation
as follows:
“
The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into
existence. Whatever the nature of the document, consideration
must be given to the language used in the light of the
ordinary rules
of grammar and syntax; the context in which the provision appears;
the apparent purpose to which it is directed
and the material known
to those responsible for its production. Where more than one
meaning is possible each possibility
must be weighed in the light of
all these factors. The process is objective, not subjective.
A sensible meaning is
to be preferred to one that leads to insensible
or unbusinesslike results or undermines the apparent purpose of the
document.
Judges must be alert to, and guard against, the
temptation to substitute what they regard as reasonable, sensible or
businesslike
for the words actually used. To do so in regard to
a statute or statutory instrument is to cross the divide between
interpretation
and legislation; in a contractual context it is to
make a contract for the parties other than the one they in fact
made.
The ‘inevitable point of departure is the language
of the provision itself’, read in context and having regard to
the
purpose of the provision and the background to the preparation
and production of the document.”
[21] As counsel for the
applicant pointed out, on the reading of the letter, there are no
conditions imposed subject to which the
applicant’s space may
be offered to the next deserving student before the expiry of the 3
(three) day period. Furthermore,
and assuming that the
registrar could offer the applicant’s space to another
deserving student before the expiry of the 3
(three) day period on
the basis of first come first served, one would have expected that to
be made absolutely clear in the admission
letter itself. The
registrar appears to have understood the importance of not creating
confusion about the meaning to be
attributed to the application of
the first come first served principle. In the same letter,
dealing with the issue of accommodation
the registrar couched the
relevant paragraph as follows:
“
5.
Accommodation
Please note that Walter
Sisulu University has limited space available for on-campus
residence. Therefore, admission to on-campus
residence will be
on a first come first served basis as the University does not
guarantee a place on on-campus residences.
However, WSU has
numerous off-campus student accommodation [to] which, you may apply
should you not be admitted in [an] on-campus
accommodation.”
[22] Clearly, the
registrar could have couched paragraph 1 of the letter in similarly
clear terms if indeed the letter was not intended
to mean that the
applicant had 3 (three) days within which to claim the space
allocated to him failing which his space would be
allocated to
another deserving student. I can conceive of no other meaning
to paragraph 1 of the letter other than that which
flows naturally
from the words used in it. The environment in which the
registrar operated was very well known to himself
and the
University. The limited space in light of the huge number of
the applications received was already known to him when
he couched
the letter in the terms in which he did. The offer was extended
to the applicant in very clear terms.
[23] It was not open to
the offeror, the registrar, to change the clear terms of the offer
before the expiry of the 3 (three) day
period specified in the letter
by taking the space that the registrar said was available to the
applicant and prematurely give
it to the next deserving student.
That clearly cannot be so as doing so would render the letter itself
meaningless in that
regard. That letter and its contents are
binding on both parties. The space of the applicant could only
be offered
to the next deserving student on the expiry of the 3
(three) day period if the simple language of the letter itself is to
be heeded
as it must be. The 3 (three) day period must surely
have been intended to make it absolutely clear to the recipient that
the offer was not open ended. Furthermore, space limitations
and first come first served would apply after the expiry of the
3
(three) day period if the applicant did not register within the
prescribed 3 (three) day period. This is because after
the
expiry of the 3 (three) day period he would have lost the space
allocated to him as he would have failed to act within the
timelines
expressly communicated to him.
[24] At paragraph 23.9 of
the answering affidavit the registrar says that historically once
registration opens and because of the
big number of students seeking
registration, courses in the past would become fully subscribed
within 30 minutes. While this
information is enlightening,
there is no information or submission about when this course in which
the applicant was interested
became fully subscribed in the 2023
academic year. There is no indication of how many students, if
any, had already registered
on the 7 February 2023 when the letter
was written. Clearly, the registrar is able to time the
registration process.
In this case, if the registrar’s
case is that the applicant delayed as it seems to be, he should also
have pointed out any
lack of promptitude on the part of the
applicant. All that information would have helped to dispel any
suspicion that any
employee of the University could have bumped off
the applicant from his space unfairly to create space, at the expense
of the applicant,
for a person who might have been allowed to
register even later than the applicant. While the applicant
might still have
insisted on being registered on the same basis that
the 3 (three) day period had not expired, there would, at the very
least, be
transparency in how the so called first come first served
principle was applied.
[25] It was never
disclosed in the admission letter addressed to the applicant that
there were only 75 spaces that prospective students
would be
competing for and that each one of those spaces would be allocated on
a first come first served basis. The letter
does not say so.
What the applicant was told was that he had 3 (three) days within
which to accept his space. It surely
cannot be that the 3
(three) day period and the respondents’ interpretation of space
availability and first come first served
co-exist harmoniously.
The respondents make no attempt to clarify this and in fact ignore
the 3 (three) day period completely
as if it is not there. The
first respondent is an academic institution and the registrar, the
author of the letter, is a
highly educated individual who must be
assumed to know what he says in the context of the circumstances in
which he operates.
[26]
It is public knowledge that there is a huge demand for education
space in public institutions all the way up to the tertiary
education
institutions such as the first respondent. This is more so that
the University itself serves some of the very poor
communities in
this country most of whom are trapped in poverty in the townships and
rural areas. Their only hope of escaping
the shackles of
poverty is the further education that institutions such as the first
respondent offer. It is public knowledge
that government has
made great strides in its attempt to make further education
accessible to ordinary people who cannot afford
on their own, to send
their children to school or to access higher education. I do no
not think that the registrar is oblivious
to this reality as he goes
about doing his work. I cannot express what I am saying here
any better than Khampepe J did in
Moko
[3]
not so long ago in the first three paragraphs of the unanimous
judgment of the Constitutional Court. She said:
“
There
are a few things as important for the flourishing of the society and
its people as education. Through education, doors
are opened to
opportunities that were only before ever dreamt of. I am not
exaggerating when I say that education changes
lives. It
enriches and develops our children so that they may reach the height
of their potential. And, as our citizens
are empowered through
education to improve their future and achieve their dreams, our
nation will undoubtedly prosper too.
The fundamental
importance of education is recognised by our Constitution, which
entrenches the right to education in the Bill of
Rights.
Section 29 (1) of the Constitution provides:
“
Everyone
has the right –
(a)
to a basic education, including adult basic
education, and
(b)
to further education, which the state,
through reasonable measures, must make progressively available and
accessible.”
The case before us
concerns a young man who asks this Court to assist him as a matter of
urgency, in protecting and vindicating
this right to education.”
[27] It was argued on
behalf of the respondents that the right to further education in
terms of section 29 (1) (b) of the Constitution
is not a right to a
tertiary education at a University. It is a right that provides
an obligation upon the State to make
further education progressively
available and accessible by taking reasonable measures to do so.
I think that the respondents’
submissions in this regard
misconstrue both the applicant’s case and also, the ambit of
the right itself. The applicant’s
case is not that the
third respondent has failed to do anything to make it possible for
him to have access to further education
provided for in section 29
(1) (b) of the Constitution. As I have already pointed out,
government has made commendable progress
to enable thousands of young
people from very poor backgrounds to have real access to further
education if they meet the admission
criteria set by the further
education institutions and register with those institutions. I
understand the applicant’s
case to be that he was prevented
from registering when his space was taken away from him unfairly and
therefore in violation of
his right of access to further education.
He is before this Court to seek the protection and vindication of his
right to
further education which is being negated by the respondents
in preventing him from registering.
[28] The conduct of the
respondents, who, having allocated a space to the applicant and
having given him 3 (three) days within which
to claim it - the
allocation of his space to somebody else contrary to the terms
communicated to him for accepting it cannot be
countenanced.
That conduct stands in the way of the applicant exercising his right
to further education and in fact impermissibly
and therefore
unconstitutionally denies him his right to further education.
[29]
In
Moko
[4]
the ambit of the right contained in section 29 (1) (b) was explained
as follows by the Constitutional Court:
“
Section
29 (1) (b) gives learners like Mr Moko a right to study beyond Grade
12, if so minded. Mr Moko has made it abundantly
clear that he
intends to exercise this right, circumstances permitting. Hence
this litigation. It is evident that the
right to further
education is adversely affected when a learner is unjustifiably
prevented from completing the Grade 12 examinations
in time to apply
to tertiary institutions for further studies. As a result of the
first respondent’s conduct, the applicant
almost lost the
opportunity to pursue further education at a tertiary institution
starting in February 2021. It would not
have broken his school
career, as it did for those pregnant girls under the pregnancy policy
in the
Welkom High School
case, but it would have broken his educational path by a year, which
could unduly have resulted in an irretrievable alteration
of his
future.”
[30] The applicant is not
seeking admission to the University. He was admitted and told
what he needed to do to register.
He was also given time frames
within which to register. The unconstitutional conduct is not
that of not admitting the applicant
when in fact he qualifies to be
admitted in terms of the applicable admission criteria. It is
that of unlawfully preventing
him from registering within the
timelines that the University itself gave to him. He clearly
acted with commendable promptitude,
only to be told that the
University has reached its target. He was never told of any
target subject to which he would be
prevented from registering even
before the expiry of the 3 (three) day period if that target is
reached. The letter vaguely
refers to space limitations and
first come first served both of which are in complete dissonance and
are misaligned with the 3
(three) day period within which he was
required to claim his space.
[31] The respondents’
case, as I understand it, is not that the applicant was dilatory in
trying to register, nor could it
cogently be. If it is, then
they have failed to establish his dilatoriness by giving facts on
which such a conclusion is
reached. They do not even indicate
the event that could precipitate his space being given to somebody
else before the expiry
of the 3 (three) day period. I cannot
conceive of any situation of an offer being made to a person with a
period within which
it must be accepted, with no reservation of any
right to withdraw the offer before its expiry or make it available to
another person,
not being binding on the offeror.
[32]
The case of
Manna
[5]
on which the respondents’ proposition on the right of the
offeror to reject a late acceptance of the offer is based does
not
assist the respondents either. In
Manna
Griesel J said:
“
I
now turn to deal with the main defence relied on by the seller,
namely that she had ‘accepted’ the offer some four
days
after it had lapsed, with the consequence that her purported
‘acceptance’ was a nullity. The argument on
behalf
of the seller is based on the proposition that ‘an offer lapses
if it is not accepted within the prescribed time.’
In my
respectful opinion, however, this proposition is stated too widely
and is potentially misleading. It correctly summarises
the
position where the offeror elects to reject the late ‘acceptance’
of an offer. The cases relied on by
Kerr
as well as by
De
Wet & Van Wyk
for the above proposition all fall into this category. Clearly
the late acceptance of an offer cannot bind the offeror: it
is a
trite principle of our law that, in order to bind the offeror,
the
acceptance must be made before the expiry of the offer
[6]
.
The present case, however, is different: here, the offeror has
elected to accept the late ‘acceptance’ and seeks
to bind
the offeree. The issue for determination is thus whether the
offeree can avoid the agreement by relying on her own
late
‘acceptance’ of the offer.”
[33] It seems to me that
the University was required to prove that the applicant’s
acceptance of the offer was out of the
time prescribed in the
admission letter. Vague epithets like availability of space and
first come first served would indeed
bind the applicant but only
after the expiry of the 3 (three) day period. This is so
because the University would not be
bound to accept a late acceptance
if the applicant had only attempted to register after 3 (three)
days. Put differently,
the University would be entitled to
reject a late acceptance and the constitutional right to further
education contained in section
29 (1) (b) would, in those
circumstances, not avail the applicant. This means that the
respondents are required to prove
that the acceptance was late.
They have failed to do so. That failure to prove that the
acceptance was late cannot
co-exist with prematurely giving
applicant’s space to another deserving student.
[34] Furthermore, the
respondents were not entitled to appropriate for themselves the right
to resile from or change the clear terms
of the offer by actively
preventing the applicant from registering. It appears from the
respondents’ papers that the
registrar was more concerned with
ensuring that there was no undersubscription for the LLB course.
In other words, the registrar
was less concerned about the
possibility of the course becoming over-subscribed as he seemed to
believe that he could simply and
willy-nilly prevent the excess
students from registering. It is even difficult to understand how
issuing 276 admission letters
with no conditions other than the 3
(three) days within which to register for 75 spaces made sense for a
University that is in
a country where there is literarily a huge
number of applications than can be allowed to register. Unless,
and I hope that
that is not the case, the University was prepared to
play Russia roulette with the career aspirations and the evident huge
thirst
and hunger for access to higher education by many young people
who are trying to break the generational backbone of poverty
especially
amongst black communities.
[35] In all these
circumstances, the applicant succeeds and the conduct of the
respondents falls to be declared to be in violation
of section
29(1)(b) of the Constitution. The respondents must therefore be
ordered to immediately allow the applicant to
register for the
Bachelor of Laws degree in the 2023 academic year for which he was
admitted. I do need to emphasize that
the first respondent, as
a public institution, is obliged to promote and respect the rights of
ordinary people as contained in
the constitutional framework.
It is also subject to constitutional scrutiny like all public
institutions and is bound by
the constitutional norms such as
transparency and accountability and the respect for the
constitutional rights and aspirations
of the people of this country.
This applies more especially to the young people from our townships
and rural areas most of
whom weather many storms with resilience and
tenacity and have to overcome many challenges just to reach and pass
grade 12 with
a decent percentage. There is no reason why costs
should not follow the result.
[36] In the results the
following order is made:
1. That this application
be and is hereby enrolled, treated, heard and determined as an urgent
application as envisaged in 6 (12)
of the Uniform Rules of this
Honourable Court and that the usual forms and time limits and
requirements for service as provided
for in terms of the Uniform
Rules of Court and Practice Directives be dispensed with and/or that
any non-compliance with such rules,
and Practice Directives be and is
hereby condoned;
2. The conduct of the
first and second respondents, which resulted in the applicant’s
inability to register and enrol for
the Bachelor Laws (LLB) degree at
Walter Sisulu University, Mthatha, for the 2023 academic year be and
is hereby declared to be
a violation of the applicant’s right
to further education provided for in section 29 (1) (b) of the
Constitution.
3. The first and second
respondents’ conduct of excluding and/or barring the applicant
from registering and enrolling for
the Bachelor of Laws (LLB) degree
at the Walter Sisulu University, Mthatha for the 2023 academic year
is declared to be unlawful
and in breach of the respondents’
constitutional obligation provided for in section 29 (1) (b) of the
Constitution, not to
prevent the applicant from exercising his right
of access to further education.
4. The first and second
respondents’ conduct of excluding and/or barring the applicant
from registering and enrolling for
the Bachelor of Laws (LLB) degree
at the Walter Sisulu University for the 2023 academic year is
declared to be in breach of contract.
5. The first and second
respondents are directed and compelled to remedy the breach of
contract, by allowing and assisting the applicant
to register and
enrol for the Bachelor of Laws (LLB) degree at the Walter Sisulu
University, Mthatha within 2 (two) days from the
date of this order.
6. The first and second
respondents are ordered to pay the costs of this application.
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances:
Counsel
for the Applicant
:
S I VOBI
Instructed
by
:
S. MBALANE ATTORNEYS INC.
MTHATHA
Counsel
for the Respondent:
BOTMA
Instructed
by
:DRAKE
FLEMMER & ORSMOND (EL) INC
MTHATHA
Date heard :
28 February 2023
Delivered
on : 07 March 2023
[1]
1.
Section
37
of the
Higher Education Act 101 of 1997
reads: (1) Subject to
this Act, the Council of a public
higher
education institution, after consulting the senate of the public
higher education institution,
determines
the admission policy of the public higher education institution.
2.
The council must publish the admission policy and make it available
on request.
3.
The admission policy of a public higher education institution must
provide appropriate measures for the
redress
of past inequalities and may not unfairly discriminate in any way.
4. Subject to this Act,
the council may, with the approval of the senate –
(a) determine entrance
requirements in respect of particular higher education programmes;
(b) determine the number
of students who may be admitted for a particular higher education
programme
and the manner of their selection;
(c) determine the
minimum requirements for readmission to study at the public higher
education
institution
concerned; and
(d)
refuse readmission to a student who fails to satisfy such minimum
requirements for readmission.
[2]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at 603 F-G to 604 A-C.
[3]
Moko
v Acting Principal of Malusi Secondary School & Others
2021 (3)
SA 323
(CC);
2021 (4) BCLR 420
(CC); (2022) 43 1LJ 2269 (CC).
[4]
Note
3 supra at para 37.
[5]
Manna
v Lotter and Another
2007 (4) SA 3
& 5 (CPD) at 320 H to 321
A-B.
[6]
My
underlining.